Remarks by John Burroughs
Civil Society Responds to Weapons Of Terror:
Assessing the Report of the WMD Commission
October 17, 2006, United Nations, New York

We could not agree more with the thrust of the WMD Commission’s
analysis: that global regimes and norms and the United Nations are
necessary to control and eliminate nuclear, biological and chemical
weapons. While this may seem obvious to people in this room, it
is a message that needs to be heard, and in our project we are amplifying
that message in our own country, where it especially needs to be
heard. And the North Korean nuclear test has underlined the urgency
of getting the non-proliferation regime back on track.

Today I’ll talk about some of what I think is missing in
Weapons of Terror – but don’t get me wrong, it is a
very important contribution to getting the world back on the right
path.

ARTICLE VI
Let me start with Article VI of the NPT. The WMD Commission observes
that “it is easy to see that the nuclear-weapon states parties
to the NPT have … failed to ‘pursue negotiations in
good faith’ on nuclear disarmament as required of them under
the NPT.”

We heartily agree, and document in some detail why this is so.
The 2000 NPT commitments elaborated what is needed to implement
Article VI. Perhaps the most serious instance of backsliding on
the 2000 commitments is the U.S. abandonment, with Russian acquiescence,
of application of the principles of verification, transparency,
and irreversibility in bilateral reductions.

Those principles were inherent in the decades-old history of arms
control between the two countries. In stark contrast, the 2002 U.S.-Russian
Strategic Offensive Reductions Treaty (SORT) contains no verification
provisions and requires no dismantlement of delivery systems or
warheads. The two countries declared that they would make use of
monitoring mechanisms under START to track reductions. But START
expires in 2009, and SORT does not provide any schedule for reductions
prior to 2012.

A high priority therefore is for the United States and Russia to
agree on means to verify and make irreversible the reductions. WMD
Commission recommendation 18 rightly calls for negotiation of a
new treaty that would further cut strategic forces and also provide
for verified dismantlement of warheads withdrawn under SORT.

Now for a criticism. While the WMD Commission provides considerable
discussion of verification of non-proliferation requirements, it
does not address verification of disarmament. This is unfortunate.
It needs to be understood that achieving confidence in the implementation
of the reduction and elimination of arsenals remains challenging,
principally due to the possibility of hidden stocks of materials,
warheads, or capabilities.

A 2005 U.S. National Academy of Sciences study found that confidence
would increase based on monitoring programs undertaken on an ongoing,
long-term basis in an atmosphere of transparency and cooperation.
The implication is that verification and transparency measures need
to be implemented beginning now, above all regarding U.S.-Russian
stocks and reductions. More broadly, all weapon-possessing states
must participate. Declarations of fissile materials contained in
military stocks and warheads, as recommended by the International
Panel on Fissile Materials, is one of the first steps that could
be taken.

MISSILES AND MISSILE DEFENSES
Our colleague at Western States Legal Foundation, Andrew Lichterman,
wrote the section of our study on missiles and missile defenses.
As he explains, the WMD Commission’s recommendations in this
area are notably weak compared with recommendations elsewhere in
the report. They come nowhere close to the Canberra Commission’s
call for a global treaty controlling ballistic missiles. This is
an area that states must put back on the international agenda. The
reduction and elimination of nuclear arsenals will likely be impossible
without controlling delivery systems and defenses against them.

ROLE OF THE SECURITY COUNCIL
The WMD Commission is emphatic about the central role of the Security
Council in reducing the risks posed by NBC weapons. It says that
the Council should enforce disarmament and nonproliferation requirements,
as a last resort employing or authorizing economic sanctions or
military action. Moreover, it endorses the Council acting as a global
legislator, as the Council has already done in resolution 1540.

There are strong reasons for the Commission to have taken these
positions. In the current institutional framework, the Council is
best positioned to act expeditiously and authoritatively. But there
are also powerful reasons for caution: the Council’s lack
of legitimacy and accountability and the need for full participation
of affected states. We analyze these matters in some depth, and
make the following recommendations:

Adequate governance mechanisms should be developed for the NPT.
There needs to be robust compliance assessment and enforcement
mechanisms before a situation gets to the Security Council. The
Commission is in accord with this point.

The Security Council should not be the first resort to deal
with issues of non-compliance with non-proliferation and disarmament
obligations. When a matter is before the Council, the Council
when appropriate should employ modes of action that do not depend
on a finding of a threat to peace and security. This avoids the
implication that force may be used at some point, and recognizes
that new approaches are needed to deal with non-compliance with
disarmament and non-proliferation requirements. The shorthand
for this would be: Chapter VI instead of Chapter VII. There has
been recent movement in this direction in the July resolution
on Iran and the June resolution on the North Korean missile launch.

Multilateral treaty negotiations, not Security Council resolutions,
should continue to be the favored means of global law-making.

OUTLAWING OF NUCLEAR WEAPONS
As lawyers working for nuclear disarmament, we are mostly pleased
that the Commission recommends acceptance of “the principle
that nuclear weapons should be outlawed.” But it is too bad
that the Commission did not note that the threat or use of nuclear
weapons is already “outlawed” in the sense that it would
violate international humanitarian law and other law governing armed
conflict. It is true that the International Court of Justice reached
this conclusion only “generally”. But the Commission
could have drawn upon its own authority and expertise – after
all one of the obstacles for the Court was that it did not feel
expert in matters of nuclear weapons.

In 1997, the Committee on International Security and Arms Control
of the U.S. National Academy of Sciences took just this course.
The National Academy of Sciences Committee said that the International
Court of Justice

unanimously agreed that the threat or use of nuclear weapons is
strictly limited by generally accepted laws and humanitarian principles
that restrict the use of force…. In the committee’s
view, the inherent destructiveness of nuclear weapons, combined
with the unavoidable risk that even the most restricted use of such
weapons would escalate to broader attacks, makes it extremely unlikely
that any contemplated threat or use of nuclear weapons would meet
these criteria.

I’ll close with some points of appreciation: LCNP was a central
player in the global civil society campaign to support the General
Assembly’s request for an advisory opinion from the International
Court of Justice. We are especially glad that the Commission highlights
the Court’s unanimous statement of the disarmament obligation:
“pursue in good faith and bring to a conclusion negotiations
on nuclear disarmament.”

And as a coordinator of drafting of a model nuclear weapons convention
in the 1990s, we are pleased that the Commission says a “nuclear
disarmament treaty is achievable.”